Whose Finding Is It Anyway: The Division of Labor between Courts and Arbitrators with Respect to Waiver

Given the emphasis with which the Supreme Court has made clear its policy favoring arbitration, it is not surprising that some courts may have reacted by divesting themselves of a gateway issue long decided by courts. Traditionally, courts have determined whether a party has acted inconsistently with its right to arbitration, thereby waiving it, but a few courts found that the question is properly before an arbitrator. Recently, the First Circuit Court of Appeals in Marie v. Allied Home Mortgage Corporation2 established a framework through which the federal circuits may begin to close the potential split of authority regarding waiver of the right to arbitration. This framework distinguishes between waiver by litigation conduct and waiver by delay or other contractual limitation, maintaining the former for judicial review, and delegating the latter to arbitrators. While it is likely that Marie will become the rule, an alternative may exist in a separate set of equitable defenses, avoiding the confusion that comes from distinguishing between different forms of waiver